n 


3 £ 


* # , ; 

i:  ’ 


TRUST  MORTGAGE, 


dticagat  and  (^uiuctj  |toit  §tad 

Company 


TO 


HANS  REIMER  CLAUSSEN,  SIDNEY  BARTLETT, 
AND  CHARLES  G.  LORING. 


3sr.4- 


6 > 
</> 


TRUST  MORTGAGE. 


<S$tajp,  IitrIingt0u  anlr  Quints  Sail  itoafo  tap% 

TO 

HANS  REIMER  CLAUSSEN,  SIDNEY  BARTLETT,  AND  CHARLES  G. 

LORING. 


®I)I0  Inbentltrr,  made  this  First  day  of  September.  A.  D. 
1860,  between  the  Chicago,  Burlington  and  Quincy  Rail 
Road  Company,  a Corporation  duly  constituted  as  such,  under 
the  laws  of  the  State  of  Illinois,  party  of  the  first  part,  and 
Hans  Reimer  Claussen,  of  Davenport,  in  the  State  of  Iowa, 
Sidney  Bartlett  and  Charles  G.  Loring,  of  the  city  of 
Boston,  State  of  Massachusetts,  Trustees  of  such  bondholders 
of  the  first  mortgage  on  the  Northern  Cross  Railroad  Company, 
who  have  entered,  or  shall  hereafter  enter,  into  an  agreement, 
bearing  date  June  4,  1860,  hereinafter  stated,  parties  of  the 
second  part : — 

U%rea0,  in  accordance  with  a special  law,  passed  by  the 
Legislature  of  the  State  of  Illinois,  for  the  benefit  of  the  Chi- 
cago and  Aurora,  the  Central  Military  Tract,  and  Northern 
Cross  Railroad  Companies,  and  approved  January  16,  1855,  and 
also  agreeably  to  a general  law,  passed  by  the  Legislature  of 
the  State  of  Illinois,  and  approved  February  12,  1855,  for  the 
purpose  of  aiding  in  the  construction  and  operation  of  the 
Northern  Cross  Road,  an  agreement  was  executed  bearing  date 
January  1,  1855,  between  the  Northern  Cross  Railroad  Com- 
pany, of  the  first  part,  the  Central  Military  Tract  Railroad 
Company,  of  the  second  part,  the  Chicago  and  Aurora  Railroad 
Company,  of  the  third  part,  and  John  M.  Forbes,  John  Eliot 
Thayer,  and  Louis  A.  von  Hoffman,  as  Trustees  of  the  bond- 
holders of  the  second  mortgage,  on  the  Northern  Cross  Railroad, 


V 


59040 


4 


of  the  fourth  part ; by  which  agreement  it  was  covenanted  be- 
tween said  parties  of  the  second,  third,  and  fourth  parts,  that 
certain  bonds  issued  by  said  parties  of  the  first  part,  amounting 
to  one  million  of  dollars  capital,  and  secured  by  a second 
mortgage  on  said  Northern  Cross  Railroad,  connecting  at  Gales- 
burg with  the  two  other  Roads  above  mentioned,  should  be 
purchased  by  each  party  of  the  second  and  third  parts,  from 
and  after  the  first  day  of  January,  1857,  to  the  amount  of 
twenty-five  thousand  dollars  semi-annually,  so  long  as  said 
bonds  can  be  purchased  at  par,  upon  certain  terms  and  in  man- 
ner, as  is  more  fully  stated  in  said  contract,  to  which  reference 
is  hereby  made ; and  whereas , the  said  parties  of  the  second 
and  third  parts,  now  legally  consolidated  under  the  name  of 
the  Chicago,  Burlington  and  Quincy  Railroad  Company,  have 
bought,  in  assumed  compliance  with  said  contract  of  January 
1,  1855,  of  said  Northern  Cross,  second  mortgage  bonds — the 
amount  of  nearly  two  hundred  thousand  dollars  ; and  whereas , 
the  validity  of  said  contract  has  been  controverted  by  said 
Company,  and  an  injunction  has  been  issued  restraining  the 
Chicago,  Burlington  and  Quincy  Railroad  Company  from 
buying  any  more  bonds,  in  accordance  with  said  contract  of 
January  1,  1855  ; and  whereas , a compromise  has  been  made 
with  certain  of  the  holders  of  said  second  mortgage  Northern 
Cross  Railroad  Company’s  bonds,  by  which  compromise  the 
Chicago,  Burlington  and  Quincy  Railroad  Company  agrees  to 
buy  the  bonds  of  said  bondholders,  who  have  consented,  or  will 
consent,  to  said  compromise,  made  at  Frankfort-on -the-Maine, 
June  4,  1860,  in  the  manner  therein  set  forth. 

Whereas , by  such  purchases,  the  said  Chicago,  Burlington 
and  Quincy  Railroad  Company  has  acquired  a right  of  redeem- 
ing the  first  mortgage,  created  on  said  Northern  Cross  Railroad  : 

And  whereas,  the  manner  of  purchasing  or  redeeming  said 
first  mortgage,  and  also  of  paying  for  the  said  second  mortgage 
bonds,  has  been  agreed  upon  in  said  contract  of  June  4,  1860, 
between  the  representatives  of  the  owners  of  certain  of  said 
bonds  of  the  one  part,  and  the  Honorable  Charles  H.  Warren, 
as  Attorney  in  fact  for  the  Chicago,  Burlington  and  Quincy 
Railroad  Company,  of  the  second  part,  which  said  contract  of 
June  4,  1860,  has  been  unanimously  approved  by  the  Directors 
of  said  Company,  has  also  been  ratified  by  a majority  of  all 
the  stockholders  of  the  same,  in  a meeting  duly  notified  and 


5 


held  at  Chicago,  August  24,  A.  D.  1860,  and  is  conceived  in 
the-  following  terms : 

“ An  Agreement  made  this  4th  day  of  June,  1860,  between 
such  holders  of  the  first,  and  such  holders  of  the  second  mort- 
gage bonds  of  the  Northern  Cross  Railroad  Company  as  become 
parties  hereto,  of  the  first  part,  and  the  Chicago,  Burlington 
and  Quincy  Railroad  Company,  of  the  second  part. 

I.  Northern  Cross  First  Mortgage. 

§ 1.  The  party  of  the  second  part  agrees  to  buy  all  the  North- 
ern Cross  first  mortgage  bonds  which  are  held  by  the  bond- 
holders, parties  hereto,  at  par  of  the  principal,  and  to  pay  there- 
for in  bonds  of  the  Chicago,  Burlington  and  Quincy  Railroad 
Company — which  bonds  are  to  be  payable  in  thirty  years  from 
the  first  July,  1860,  with  coupons  attached.  The  interest  on 
these  bonds  is  to  be  paid  half-yearly,  and  is  to  be  as  follows : — 
for  the  first  fifteen  years,  four  and  a half  per  cent  per  annum, 
and  for  the  second  fifteen  years,  four  per  cent  per  annum. 

§ 2.  These  bonds  are  to  be  secured  by  a mortgage  upon  the 
said  Chicago,  Burlington  and  Quincy  Road,  which  mortgage  is 
to  be  for  the  sum  of  $1,200,000,  the  party  of  the  second  part 
stipulating  that  no  bonds  are  to  be  issued  under  said  mortgage, 
excepting  in  exchange  for  first  mortgage  bonds  of  the  Northern 
Cross  Railroad,  and  further  stipulating  that  the  whole  amount 
of  mortgage  debt  of  the  Chicago,  Burlington  and  Quincy 
Road,  and  of  the  Central  Military  Tract  Railroad,  and  of  the 
Chicago  and  Aurora  Railroad,  united,  having  precedence  of  the 
mortgage  herein  before  agreed  to  be  given,  shall  not  exceed 
the  sum  of  $5,000,000. 

§ 3.  On  the  first  day  of  July,  1876,  the  party  of  the  second 
part,  agree  to  pay  the  sum  of  $25,000,  for  the  redemption  of 
their  said  bonds  at  par,  and  thereafterwards  at  least  the  same 
sum  semi-annually,  for  the  like  purpose ; but  the  whole  loan 
to  be  redeemed  on  or  before  the  first  July,  1890,  agreeably  to 
§ 1, — these  amounts,  as  well  as  the  coupons  of  the  new  bonds, 
to  be  paid  to  Messrs.  John  Goll  & Sons,  in  Frankfort,  at  fi.  2.24 
kr.  per  dollar,  and  their  receipts  therefor  are  to  be  a full  dis- 
charge to  the  mortgagers. 

§ 4.  All  past  due  coupons  of  the  first  mortgage  bonds  on  the 
Northern  Cross  Railroad  are  to  be  given  up,  and  delivered  to 
the  Chicago,  Burlington  and  Quincy  Road,  except  that  they 


6 


are  to  be  held  as  collateral  security  with  said  bonds  in  the 
manner  hereinafter  provided. 

§ 5.  As  collateral  security  for  the  payment  of  said  bonds 
hereby  agreed  to  be  given,  the  present  first  bonds  now  holden 
by  the  parties  hereto  of  the  first  part,  are  to  be  deposited  with 
the  New  York  Life  and  Trust  Company  ; and  upon  the  failure 
of  the  Chicago,  Burlington  and  Quincy  Road  to  comply  with 
any  of  the  conditions  of  this  contract,  said  bonds  are  to  be  at 
the  disposal  of  the  present  holders  thereof,  or  their  respective 
assigns  or  successors. 

§ 6.  As  the  coupons  of  the  new  bonds  are  paid,  the  Depositary 
is  to  deliver  to  the  Chicago,  Burlington  and  Quincy  Road  the 
corresponding  coupons  of  the  bonds  so  lodged  as  collateral. 

§ 7.  The  present  Trustees  of  the  Northern  Cross  bondholders 
are  not  in  any  manner  to  interfere  with  any  of  the  bonds  so 
deposited,  until  a breach  of  this  contract  on  the  part  of  the 
party  of  the  second  part ; and  until  such  breach,  the  said  pafty 
of  the  second  part  are  to  exercise  all  the  rights  of  ownership  of 
said  deposited  bonds,  for  the  purpose  of  taking  possession  of 
said  Northern  Cross  Railroad,  of  foreclosing  the  mortgage  on 
the  same,  if  they  deem  it  expedient,  and  for  any  other  purpose 
not  inconsistent  with  the  security  intended  to  be  provided  for 
by  this  contract. 

§ 8.  If  the  parties  of  the  second  part  should,  by  any  means, 
become  the  owners  of  the  Northern  Cross  Road,  then  they  will 
issue  their  bonds,  bearing  an  interest  of  8 per  cent,  correspond- 
ing in  time  of  payment  with  the  old  Northern  Cross  first  mort- 
gage bonds,  and  in  amount  with  the  new  bonds  herein  before 
provided  for,  then  not  redeemed, — which  8 per  cent  bonds  are 
to  be  secured  by  a first  mortgage  on  the  Northern  Cross  Road, 
and  to  be  deposited  as  collateral  security  as  aforesaid,  in  lieu  of 
the  old  Northern  Cross  8 per  cent  bonds.  This  first  mortgage 
not  to  be  more  than  required  for  this  special  purpose. 

§ 9.  Should  the  Northern  Cross  Road  be  purchased  by  parties 
other  than  the  Chicago,  Burlington  and  Quincy  Road,  that 
portion  of  the  purchase  money  which  would  be  applicable  to 
the  bonds  deposited  as  collateral  security  as  aforesaid,  shall  be 
paid  to  the  Trustees  under  the  mortgage  provided  for  in  the 
first  clause  hereof,  and  be  by  them  invested,  and  with  its 
accumulations  await  the  maturity  of  said  bonds. 

§ 10.  If  this  purchase  money  should  be  less  than  thirty  per 


7 


cent  of  the  new  bonds  mentioned  in  said  first  clause  then  un- 
redeemed, the  Chicago,  Burlington  and  Quincy  Road  will  make 
up  that  amount  by  paying  the  difference  to  the  Trustees,  to  be 
invested  as  aforesaid. 

§11.  It  is  understood  and  hereby  expressly  agreed,  that  any 
change  of  the  proprietors  of  the  Northern  Cross  Road  shall  not 
alter  or  diminish  any  of  the  obligations  of  the  Chicago,  Burling- 
ton and  Quincy  Road  arising  out  of  this  contract. 

§ 12.  It  is  agreed,  that  any  vacancy  occurring  among  the 
present  Trustees  under  the  first  and  second  mortgage  of  the 
Northern  Cross  Road,  shall  be  filled  by  agreement  between  the 
remaining  Trustee  or  Trustees,  and  the  Chicago,  Burlington 
and  Quincy  Road ; or  if  they  cannot  agree,  the  Depositary 
aforesaid  shall  fill  said  vacancy. 

§ 13.  As  Trustees  under  the  new  mortgage  provided  for  in 
the  first  clause  hereof,  the  bondholders  shall  appoint  one,  the 
Chicago,  Burlington  and  Quincy  Road  shall  appoint  one,  and 
the  two  shall  appoint  the  third ; or  if  they  cannot  agree,  the 
President  of  the  said  Corporation  named  as  Depositary  shall 
appoint  the  third. 

<§>  14.  The  validity  of  this  contract  is  not  to  be  affected  by 
any  outstanding  claims  against  said  Northern  Cross  Road,  even 
although  such  claims  may  have  precedence  of  all  mortgages 
thereon. 


II.  Northern  Cross  Second  Mortgage. 

§ 15.  In  regard  to  the  holders  of  second  mortgage  bonds, 
parties  hereto,  the  Chicago,  Burlington  and  Quincy  Road  stip- 
ulate and  agree  as  follows : that  instead  of  the  $50,000  to  be 
paid  semi-annually  to  said  second  bondholders  according  to  the 
terms  of  the  contract  of  January  1st,  1855,  they  will  pay 
$25,000  semi-annually  ; the  first  payment  to  be  made  on  the 
first  of  January,  1861.  Said  payment,  and  all  subsequent  ones, 
which  are  to  be  made  on  the  first  of  January  and  first  of  July, 
are  to  be  made  to  Messrs.  John  Goll  & Sons,  at  the  rate  of 
exchange  before  named,  and  their  receipt  is  to  be  in  full  dis- 
charge : — this  sum  of  $25,000  to  be  paid,  if  all  the  second  bond- 
holders become  parties  hereto,  and  pro  rata  to  those  who  do 
become  parties,  if  all  do  not ; and  these  payments  are  to  be  made 
until  the  whole  of  the  par  of  the  second  mortgage  bonds  held 
by  the  parties  of  the  first  part  hereto  are  paid. 


8 


§ 16.  All  past  due  coupons  ever  attached  to  the  said  second 
mortgage  bonds  are  to  he  delivered  to  the  Chicago,  Burlington 
and  Quincy  Road.  (See  § 18.) 

§ 17.  If  for  any  reason  this  contract  should  be  defective,  or 
for  any  reason  abrogated,  or  if  the  Chicago,  Burlington  and 
Quincy  Road  should  fail  to  perform  their  part  of  it,  then  the 
second  bondholders,  parties  hereto,  are  to  be  remitted  to  all 
their  rights  under  the  contract  of  January  1,  1855,  without  any 
prejudice  to  such  rights  from  any  thing  herein  contained  ; and 
with  this  proviso,  the  said  second  bondholders,  parties  hereto, 
agree  to  such  modification  of  said  contract  of  January,  1855. 

§ 18.  As  collateral  security  for  the  performance  of  this  con- 
tract, the  said  second  mortgage  bonds,  and  all  their  coupons 
now  unpaid,  are  to  be  deposited  with  the  same  depositary,  and 
to  be  kept  upon  the  same  terms  and  conditions  as  those  herein 
before  provided  for  in  regard  to  the  first ; and  in  case  the  Chi- 
cago, Burlington  and  Quincy  Road  become  the  owners  of  the 
Northern  Cross  Road,  they  are  to  give  a new  second  mortgage 
thereon,  and  coupons  (like  § 8)  to  secure  said  bonds.  This 
second  mortgage  is  not  to  be  more  than  is  necessary  for  this 
special  object. 

§ 19.  Should  any  bondholders  not  parties  to  this  contract 
obtain,  directly  or  indirectly,  by  reason  of  any  voluntary  agree- 
ment or  bargain  to  be  made  by  the  Chicago,  Burlington  and 
Quincy  Road,  any  better  conditions  than  those  hereby  made 
with  the  parties  hereto,  for  the  same  description  of  bonds,  then 
the  said  Road  and  its  successors  shall  be  bound  in  honor  and 
in  law  to  keep  the  parties  hereto  not  worse  off  than  the  most 
favored  bondholders  of  their  class  respectively. 

§ 20.  The  Chicago,  Burlington  and  Quincy  Road  shall  not 
be  held  to  be  in  default  in  regard  to  any  payment  provided  for 
by  this  contract,  till  the  expiration  of  thirty  days  from  the  time 
named  for  such  payment ; but  if  there  be  any  delay,  even  for 
the  thirty  days,  interest  at  the  rate  of  six  per  cent  per  annum 
is  to  be  paid  by  them. 

§ 21.  Should  the  said  depositary  resign  that  trust,  or  should 
the  parties  hereto  desire  to  change  said  depositary,  or  should 
the  Trustees  of  the  new  bonds  be  of  opinion  that  the  interest 
of  either  party  requires  such  change,  then  the  said  Trustees 
may  appoint  a new  depositary. 

§ 22.  In  case  of  the  dissolution  of  the  firm  of  John  Goll  &' 


9 


Sons,  the  bondholders  shall  name  some  other  person  in  Frank- 
fort, to  whom  the  payments  herein  before  provided  for  shall  be 
made,  in  lieu  of  said  Goll  & Sons. 

§ 23.  As  the  Chicago,  Burlington  and  Quincy  Road  makes 
payments  of  the  new  bonds  to  be  issued  as  herein  provided,  a 
corresponding  amount  of  the  first  bonds  lodged  as  collateral, 
with  coupons,  is  to  be  delivered  to  them,  and  until  they  are  so 
delivered  the  said  Road  shall  not  be  obliged  to  make  further 
payments.  And  as  to  the  second  mortgage  bonds,  before  they 
shall  be  re-delivered  to  the  parties  hereto  in  consequence  of  a 
failure  of  the  Chicago,  Burlington  and  Quincy  Road  to  fulfill 
this  contract,  all  sums  that  shall  have  been  paid  shall  be  cred- 
ited and  endorsed  on  the  bonds  accordingly. 

$ 24.  The  Chicago,  Burlington  and  Quincy  Road  agree  to 
make  the  following  payments: — 

a.  To  pay  the  balance  due  upon  the  former  drawings  of 
$200,000  of  the  second  mortgage  bonds,  which  is  now  in 
arrear : 

b.  To  pay  to  John  Goll  & Sons  $1,625  on  account  of  ex- 
penses to  which  the  second  mortgage  bondholders  are  sub- 
jected : 

c.  To  pay  the  fees  of  the  gentleman  of  the  law  who  shall 
draw  out  a contract  upon  the  basis  hereby  established,  (if  such 
further  instrument  shall  be  deemed  necessary  by  the  parties  of 
the  first  part.) 

§ 25.  When  this  contract  is  finally  executed,  all  the  bonds 
held  by  the  parties  thereto  are  to  be  stamped  or  marked  as 
follows  : “ Subject  to  the  contract  of  June  the  fourth,  1860.” 

$ 26.  The  new  bonds  and  coupons  of  the  Chicago,  Burling- 
ton and  Quincy  Road  are  to  be  dated  July  first,  1860,  and  sent 
to  John  Goll  & Sons  on  or  before  November  first,  1860  ; 
whereupon  they  are  to  deliver  to  the  depositary  the  present 
bonds,  according  to  the  foregoing  agreement. 

§ 27.  No  ‘bondholders  to  be  allowed  to  become  a party  to 
this  agreement  after  the  first  of  August  next,  except  by  the 
consent  of  the  Chicago,  Burlington  and  Quincy  Road. 

§ 28.  Whenever  in  this  contract  the  Northern  Cross  Railroad 
is  mentioned,  the  road  now  called  the  Quincy  and  Chicago 
Road  is  intended. 

$ 29.  The  first  bondholders,  parties  hereto,  hereby  nominate 
2 


10 


and  appoint  Dr.  H.  R.  Claussen,  Attorney  at  Law,  Notary 
Public  and  Justice  of  the  Peace  at  Davenport,  Iowa,  as  the 
Trustee  under  the  new  bonds,  to  be  named  by  them  as  pro- 
vided in  Article  13. 

<§>  30.  The  parties  of  the  first  part  will,  simultaneously  with 
the  execution  hereof,  give  to  Charles  H.  Warren,  Esq.,  a list  of 
the  numbers  of  the  bonds  they  represent. 

In  witness  whereof  \ all  the  parties  aforesaid  have  interchange- 
ably set  their  hands  to  this  German  and  English  version 
hereof.” 

Now,  therefore,  this  Indenture  witnesseth,  that  the  said 
party  of  the  first  part,  in  order  to  secure  the  payment  of  one 
million  and  two  hundred  thousand  dollars  principal,  and  interest 
thereon,  or  such  part  thereof  as  may  belong  to  persons  who 
have  or  may  become  parties  to  said  contract  of  June  4,  1860, 
for  the  benefit  of  the  bondholders  of  the  first  mortgage  on  the 
Northern  Cross  Railroad,  and  in  consideration  of  the  sum  of 
one  dollar  paid  at  the  sealing  and  delivering  of  this  instrument 
by  the  said  parties  of  the  second  part,  the  receipt  whereof  is 
hereby  acknowledged,  have  granted,  bargained,  sold,  transfer- 
red and  conveyed  unto  the  said  parties  of  the  second  part,  (who 
hereby  accept  the  trust  herein  contained,)  and  to  the  survivor 
or  survivors,  and  successor  or  successors  in  the  said  trust  or 
assigns,  their  Railroad  now  in  operation  from  the  junction  of  the 
Galena  and  Chicago  Union  Railroad,  (at  a point  about  thirty 
miles  from  Chicago,)  to  Galesburg,  in  the  State  of  Illinois,  a dis- 
tance of  about  one  hundred  and  thirty-nine  miles,  to  the  point  of 
the  junction  with  the  Peoria  and  Oquawka  Railroad,  with  all 
the  appurtenances  now  thereto  belonging,  and  hereafter  to  be 
acquired,  including  the  right  of  way  and  land  occupied, 
acquired  and  to  be  acquired  thereby,  together  with  the  super- 
structure thereon,  or  to  be  constructed  thereon,  or  procured 
therefor,  inclusive  of  the  iron  rails,  equipments  and  superstruc- 
ture purchased,  or  to  be  purchased  therefor,  bridges,  viaducts, 
fences,  depot  grounds  and  buildings  thereon,  including  the 
depot  grounds  at  Chicago,  engines,  tenders,  cars,  tools,  ma- 
chinery, and  all  other  goods  and  chattels,  right  thereto  or  interest 
therein,  and  all  the  franchises,  rights  and  privileges  of  the  said 
party  of  the  first  part  in,  and  to,  and  concerning  the  said  Rail- 
road constructed,  or  to  be  constructed,  and  its  appurtenances 


11 


and  said  depot  grounds ; but  nothing  herein  contained  shall  be 
construed  to  prevent  the  party  of  the  first  part  from  selling, 
hypothecating  or  disposing  of  land  or  any  other  property  of 
the  said  Company,  not  necessary  to  be  retained  for  their  road- 
way or  depot  grounds,  nor  required  for  the  construction  or 
convenient  use  of  said  Road  ; nor  from  collecting  moneys  due 
the  Company  ; provided,  that  no  default  shall  have  been  made 
in  the  payment  of  the  interest  and  of  the  payments  upon  the 
principal  due  to  the  bondholders  herein  mentioned. 

And  it  is  distinctly  agreed  and  understood,  that  said  Rail- 
road, property  and  estate,  rights  and  franchises,  of  whatever 
nature,  hereby  conveyed,  are  subject  to  a mortgage  heretofore 
made  by  said  Chicago,  Burlington  and  Quincy  Railroad  Com- 
pany to  R.  B.  Forbes,  J.  N.  A.  Griswold  and  E.  L.  Baker,  by 
indenture  bearing  date  January  1,  1858,  under  which  said  Rail- 
road Company  have  issued,  and  are  authorized  to  issue  here- 
after, bonds  or  other  obligations  to  the  extent  of  five  millions  of 
dollars,  for  the  purpose,  among  other  things,  of  extinguishing 
prior  mortgages  upon  said  Road  made  by  the  Central  Military 
Tract,  and  Chicago  and  Aurora  Railroad  Companies,  and  this 
conveyance  is  made  subject  to  the  right  of  said  Chicago,  Bur- 
lington and  Quincy  Railroad  Company  to  issue  said  bonds  for 
five  millions  of  dollars  ; provided,  that  the  amount  of  all  the 
incumbrances  on  the  Road  prior  to  this  mortgage  shall  in  no 
event  exceed  five  millions  of  dollars,  and  provided,  also,  that  on 
the  premises  aforesaid  no  new  incumbrance  shall  be  created 
giving  priority  to  this  mortgage. 

And  it  is  understood  and  agreed,  that  the  bonds  issued  under 
this  mortgage,  shall  be  countersigned  by  the  Trustees,  or  a 
majority  of  them. 

To  have  and  to  hold  the  said  premises,  and  every  part 
thereof,  with  the  appurtenances,  unto  the  said  parties  of  the 
second  part,  the  survivor  or  survivors  of  them  and  assigns, 
upon  the  following  trusts,  that  is  to  say  : In  case  the  party  of 
the  first  part  shall  fail  to  pay  the  principal,  or  any  part  thereof, 
or  any  of  the  interest  on  any  of  the  said  bonds  issued,  or  to  be 
issued,  under  this  Indenture,  at  any  time  when  the  same  may 
become  due  and  payable,  or  any  other  interest  due,  according 
to  the  said  contract  of  June  4,  1860,  then,  after  thirty  days 
from  such  default,  upon  request  of  the  holder  or  holders  of 


12 


any  of  such  bonds,  the  said  parties  of  the  second  part,  the 
survivor  or  survivors,  or  the  successor  or  successors  of  them 
in  the  said  trust,  or  their  assigns,  shall  have  power  to  enter 
into  and  upon,  and  to  take  possession  of  all  or  any  part 
thereof  of  the  said  Railroad,  and  all  and  singular  the  property 
and  effects  hereby  conveyed;  and  as  the  Attorney  in  fact, 
or  Agent  of  the  said  party  of  the  first  part,  by  themselves 
or  Agent,  or  substitute  duly  appointed,  to  have,  use  and  em- 
ploy the  same,  making  from  time  to  time  all  needful  repairs, 
alterations  and  additions  thereto  ; and  after  deducting  the  ex- 
pense of  such  use,  repairs,  alterations  and  additions,  and  indem- 
nifying themselves  from  all  loss,  damage  or  liability  arising 
in  their  management  of  said  Road,  and  their  own  reasonable 
compensation,  apply  the  proceeds  thereof  to  the  payment  of 
the  interest  and  principal  of  all  said  bonds  remaining  unpaid, 
whether  the  said  bonds  shall  have  fallen  due  or  otherwise. 

And  the  said  parties  of  the  second  part,  the  survivor  or  sur- 
vivors, successor  or  successors  in  said  trust,  and  their  assigns,  in 
case  of  such  default,  at  their  or  his  discretion,  may,  or  on  the 
written  request  of  the  holders  of  at  least  one-half  of  the  bonds 
then  unpaid,  shall  cause  either  the  whole  of  the  said  premises 
subject  to  said  prior  mortgages,  or,  at  their  discretion,  so  much 
thereof  as  shall  be  necessary  to  pay  and  discharge  the  principal 
and  interest  of  all  such  said  bonds  as  may  then  be  unpaid  as 
aforesaid,  and  whether  the  same  have  matured  or  otherwise,  to 
be  sold  at  public  auction,  in  the  city  of  New  York,  or  in  the 
city  of  Chicago,  in  the  said  State  of  Illinois,  giving  at  least 
sixty  days’  notice  of  the  time,  place  and  terms  of  said  sale,  by 
publishing  the  same  in  two  daily  newspapers,  in  each  of  the 
cities  aforesaid,  and  shall  execute  to  the  purchaser  or  pur- 
chasers, a good  and  sufficient  deed  of  conveyance,  in  fee  sim- 
ple, for  the  same,  which  shall  be  a bar  against  the  party  of  the 
first  part,  their  successors  and  assigns,  and  all  persons  claiming 
under  them,  of  all  rights,  interests  or  claims  in  or  to  said  pre- 
mises or  property,  so  sold  and  conveyed,  or  any  part  thereof. 
And  it  is  further  agreed,  that  at  any  sale  as  aforesaid,  of  the 
whole  or  any  part  of  the  premises,  by  the  said  Trustees,  they 
may,  if  they  think  it  for  the  interest  of  the  bondholders, 
become  bidders  and  purchasers  of  the  same,  provided  they 
shall  not  bid  or  pay  therefor  a sum  that  shall  exceed  the 
amount  due,  and  to  become  due,  to  said  bondholders ; and  upon 


13 


such  purchase,  the  premises  which  shall  be  sold  shall  be 
thenceforth  held  in  trust  for  said  bondholders,  in  proportion 
to  their  respective  debts  or  claims  against  said  Corporation  ; 
but  subject  to  all  expenses  and  compensation  as  aforesaid. 

And  the  said  Trustee  or  Trustees  shall,  in  case  they  do  not 
buy  the  same  for  account  of  the  bondholders  as  above  provided, 
after  deducting  from  the  proceeds  of  said  sale  the  cost  and 
expenses  thereof,  and  of  managing  such  property,  and  their 
own  reasonable  compensation,  apply  so  much  of  the  proceeds 
as  may  be  necessary  to  the  payment,  as  aforesaid,  of  the  said 
principal,  and  of  the  interest  due  or  unpaid  on  said  bonds,  and 
shall  restore  and  pay  the  residue  thereof,  if  any  there  shall  be, 
to  the  party  of  the  first  part ; it  being  hereby  expressly  under- 
stood, that  in  no  case  shall  any  claim  or  advantage  be  taken  of 
any  valuation,  appraisement  or  extension  laws,  by  said  party 
of  the  first  part,  nor  any  injunction  or  stay  of  proceedings  to 
be  applied  for  or  obtained  by  them,  to  prevent  such  entry  or 
sale  as  aforesaid. 

And  it  is  hereby  expressly  understood  and  declared,  that  in 
case  the  said  parties  of  the  second  part,  their  survivors  or  suc- 
cessors, should  for  any  reason  omit  to  avail  themselves  of  any 
such  neglect  or  default  as  aforesaid,  of  the  party  of  the  first 
part,  that  such  omission  shall  not  in  any  manner  prejudice  or 
impair  the  rights  and  remedies  of  the  said  parties  of  the  second 
part,  the  survivor  or  survivors,  successor  or  successors,  or  as- 
signs, to  avail  themselves  of  any  other  or  further  neglect  or 
default  of  the  said  party  of  the  first  part. 

And  the  said  party  of  the  first  part  hereby  covenants  and 
agrees,  for  the  consideration  aforesaid,  at  any  time  or  times 
hereafter,  to  execute  and  deliver  any  further  reasonable  and 
necessary  conveyance  of  the  premises,  or  any  part  thereof,  to 
the  parties  of  the  second  part,  or  to  their  survivors,  successors 
or  assigns,  for  the  more  effectual  vesting  the  premises  hereby 
granted,  or  intended  to  be,  in  said  parties  of  the  second  part, 
and  for  more  fully  carrying  into  effect  the  object  hereof,  par- 
ticularly for  the  conveyance  of  any  property  subsequently  to 
the  date  hereof  acquired,  by  the  party  of  the  first  part,  and 
comprehended  in  the  description  contained  in  the  premises  as 
by  the  said  party  of  the  second  part,  the  survivor,  successor  or 
assigns,  or  their  counsel  learned  in  the  law,  shall  be  reasonably 
advised  or  required. 


14 


And  it  is  hereby  mutually  agreed,  and  these  presents  are 
upon  this  express  condition,  that  on  payment  of  principal  and 
interest  of  all  said  bonds,  the  estate  hereby  granted  to  said 
second  parties,  their  survivors,  successors  or  assigns,  shall  be 
void,  and  the  right  of  the  premises  hereby  conveyed  shall 
revert  and  revest  in  the  party  of  the  first  part,  without  any 
acknowledgment  of  satisfaction,  reconveyance,  or  any  other 
act. 

And  it  is  mutually  agreed,  that  the  said  parties  of  the  second 
part  shall  only  be  accountable  for  gross  neglect  or  willful  de- 
fault in  the  management  hereof,  and  shall  not  be  responsible 
for  the  acts  of  each  other,  or  of  agents  employed  by  them, 
when  such  agent  is  selected  with  reasonable  discretion ; and 
that  the  parties  of  the  second  part  shall  be  entitled  to  a reason- 
able compensation  for  any  labor  and  service  performed  by  them 
in  the  discharge  of  this  trust. 

And  it  is  further  agreed,  by  and  between  said  parties,  that 
whenever  a vacancy  among  said  parties  of  the  second  part, 
or  their  successors,  shall  occur,  by  death  or  resignation,  or 
inability  to  discharge  the  duties  of  said  trust,  the  remaining 
person  or  persons,  parties  of  the  second  part,  shall  immediately 
proceed  and  make  an  appointment  of  a successor  or  successors, 
by  endorsing  such  appointment,  in  writing,  upon  one  part  of 
this  Indenture,  and  the  person  or  persons  so  appointed,  shall 
endorse  his  acceptance  of  such  appointment  upon  this  Inden- 
ture, and  thereupon  such  person  or  persons  shall  become  one  of 
the  party  or  parties  of  the  second  part,  with  the  same  powers 
and  duties  as  if  he  or  they  had  been  originally  such  parties  of 
the  second  part ; and  the  surviving  or  remaining  parties  of  the 
second  part  shall,  by  appropriate  instruments,  vest  in  the  party 
or  parties  so  appointed,  the  necessary  legal  estate  and  interest, 
to  enable  them  to  execute  said  trust.  And  in  case  said  vacancy 
shall  not  be  filled  within  sixty  days  from  the  occurrence  thereof, 
by  said  remaining  Trustee  or  Trustees,  as  aforesaid,  then  and 
thereupon  such  vacancy  may  be  filled  by  the  President  of  the 
Farmers’  Loan  and  Trust  Company,  or  the  Depositary  of  said 
bonds. 

All  such  resignations  so  made  as  aforesaid,  shall  be  in  writing, 
endorsed  hereon,  and  on  the  duplicate  original  copies  hereof,  and 
signed  by  the  party  so  resigning  ; and  any  such  disability  certi- 
fied hereon  by  the  remaining  Trustee  or  Trustees,  and  confirm- 


15 


ed  by  the  vote  of  the  Directors  of  the  party  of  the  first  part, 
shall  be  taken  and  deemed  to  be  conclusive  in  the  premises. 

And  it  is  further  mutually  agreed,  by  the  parties  of  these 
presents,  that  if  in  the  event  of  the  resignation  or  inability  of 
either  of  said  Trustees,  ascertained  as  aforesaid,  and  before  the 
appointment  and  acceptance  of  a successor  to  such  Trustee, 
there  shall  remain  two  Trustees,  qualified  to  act,  and  it  shall 
become  necessary  or  expedient,  in  their  judgment,  that  any  act 
within  the  scope  of  the  duty  of  said  Trustees,  should  be  per- 
formed, the  same  shall  and  may  be  performed  by  said  two 
remaining  Trustees;  and  further,  that  in  relation  to  all  the 
duties  herein  provided  to  be  performed  by  said  three  Trustees, 
the  same  may,  except  where  other  provision  is  expressly  made 
herein,  be  executed  and  performed  by  a majority  of  said  Trus- 
tees, after  a meeting  or  consultation  of  all  said  Trustees. 

And  the  said  parties  of  the  second  part,  do  hereby  severally 
accept  the  trust  herein  mentioned,  and  severally  covenant  faith- 
fully to  administer  and  execute  the  same. 

In  witness  whereof,  the  said  parties  of  the  first  part  have 
caused  the  corporate  seal  of  said  Company  to  be  hereto  affixed, 
and  to  seven  other  original  Indentures  of  the  same  tenor  in  all 
respects,  and  the  same  to  be  signed  by  John  Van  Nortwick, 
their  President,  and  Amos  T.  Hall,  their  Treasurer,  both  for 
that  purpose  duly  authorized,  the  day  and  year  first  above 
written. 

And  the  said  parties  of  the  second  part  have  affixed  their 
seals  and  signatures  hereto,  and  to  said  seven  other  original 
Indentures. 


[seal.] 


JOHN  VAN  NORTWICK,  President . 
AMOS  T.  HALL,  Treasurer. 


HANS  REIMER  CLAUSSEN.  [l.  s.] 
SIDNEY  BARTLETT.  [l.  s.] 

CHARLES  G.  LORING.  [l.  s.] 


Witnesses. 


J.  N.  Denison. 

William  B.  Fowle,  Jr. 


3 0112  061937345 


16 


COMMONWEALTH  OF  MASSACHUSETTS. 


County  of  Suffolk,  ss. 


Be  it  remembered,  that  on  this,  the  twenty-fourth  of 
September,  in  the  year  one  thousand  eight  hundred  and  sixty, 
before  me,  Benjamin  H.  Currier,  a Commissioner  of  the 
State  of  Illinois,  duly  appointed  to  take  the  acknowledgment 
and  proof  of  deeds  and  other  instruments  to  be  recorded  in  said 
State  of  Illinois,  and  also  to  administer  oaths,  dwelling  in  the  city 
of  Boston,  personally  appeared  John  Van  Nortwick,  President, 
and  Amos  T.  Hall,  Treasurer  of  the  Chicago,  Burlington  and 
Quincy  Railroad  Company,  personally  known  to  me  to  be  the 
President  and  Treasurer  of  said  Company,  and  whose  signatures 
are  attached  to  the  foregoing  instrument  as  such  President  and 
Treasurer,  and  being  duly  sworn,  do  depose  and  say,  that  they 
were  President  and  Treasurer  of  said  Company,  respectively, 
at  the  date  of  the  execution  of  the  foregoing  Instrument,  and 
are  still  such  President  and  Treasurer,  respectively,  and  that  said 
Instrument  was  executed  by  and  under  a resolution  of  the  Board 
of  Directors  of  the  said  Company,  and  that  under  and  by  virtue 
of  said  resolution,  the  seal  of  said  Company  has  been  affixed  to 
the  said  Instrument  by  them,  and  that  the  seal  thereto  attached 
is  the  seal  of  said  Company,  and  that  they  did  then  and  there 
acknowledge  that  the  said  seal  was  affixed  thereto,  and  that 
the  said  Indenture  was  executed  and  was  delivered  by  the  said 
Company  as  aforesaid,  acting  through  them  by  virtue  of  the 
said  resolution,  as  the  free  act  and  deed  of  the  said  Company, 
and  for  the  uses  and  purposes  therein  expressed,  and  that  the 
said  seal  is  the  seal  of  the  said  Company,  and  that  the  said 
signatures  are  their  signatures,  as  said  President  and  Treasurer, 
respectively,  and  that  said  Instrument  is  the  Deed  of  said 
Company. 

In  witness  whereof,  I have  hereto  set  my  hand  ar 
official  seal,  as  such  Commissioner,  at  my  office,  m Boston,  i 
the  County  6f  Suffolk,  and  Commonwealth  of  Massachusetts, 
on  this  twenty-fourth  of  September,  A.  D.  1860. 

[seal.]  BENJAMIN  H.  CURRIER, 

Commissioner  for  Illinois  in  Massachusetts. 


! 

1 


